July 15, 2011

A lack of prosecutorial discretion

As regular readers of this blog know, I don't think that Roger Clemens should have ever stood trial for allegedly perjuring himself in connection with Congress' investigation into use of performance enhancing drugs in professional sports.

Nevertheless, the government refused to exercise prosecutorial discretion and insisted upon pursuing the case against Clemens.

But to make matters worse than that dubious decision, the prosecution was either so cocky or negligent with regard to prosecuting its case against Clemens that prosecutors violated an order of U.S. District Judge Reggie Walton not to disclose certain information the the jury.

Whether arrogance or negligence, the result was dire for the prosecution - Judge Waltondeclared a mistrial on the second day of the trial.

So, now the threshold question is whether Clemens can be prosecuted again for the same offense without violating principles of double jeopardy that protect citizens from the government prosecuting an individual multiple times for the same offense.

As Scott Greenfield relates, that issue essentially comes down to the prosecution's mens rea in exposing the jury in Clemens' first trial to the forbidden evidence.

If the prosecution did so intentionally in an attempt to get away with violating the judge's order in an attempt to influence the jury, then the judge ought to dismiss the indictment against Clemens.

On the other hand, if the prosecution falls on its sword and persuades the judge that the prosecutors are such imbeciles that the presentation of the forbidden evidence to the jury was the result of an unintentional mistake, then the judge will probably allow the prosecution to tee up another prosecution of Clemens.

Just out of curiosity - does anyone other than some prosecutors and a few paternalistic judges really believe that the prosecutors in a case under this level of public scrutiny would unintentionally present forbidden evidence to the jury?

It is high time for this case to go away.

Posted by Tom at July 15, 2011 12:01 AM |

Comments

Pardon me for being off-topic here, but I just saw
the Simon Lewis TED talk, and I want to urge all who didn't see it the other day when TomK posted it, to
watch it. It's a truly mind-blowing presentation.

Never attribute to malice that which can be adequately explained by mere incompetence.

Personally -- and I'm obviously only speculating, as are we all -- I don't think anyone intended the violation. It was a likely act of career suicide, for marginal if any potential gain. There are lots and lots of ways that prosecutors can, and occasionally do, cut corners that are less likely to be exposed and more likely to actually help the prosecution. Any prosecutor who intended this ought also qualify for a diminished capacity defense, because if this was deliberate it was the stupidest bad act of this new century.

It is nevertheless so colossal and inexcusable a blunder as to preclude a retrial.